manufacture for domestic or commercial purposes.

Accordingly, we think the demurrer to the petition should have been overruled, and that the plaintiffs should be permitted to show, if they can, by extrinsic evidence, the situation of the parties, the circumstances surrounding the execution of the deed, and that it was not intended by the grantor or grantee that oil or gas rights or privileges should pass under it, and that, if an issue of fact, under appropriate pleadings, is made on this question, the

burden of proof will be on the plaintiffs to make out their case by clear and convincing evidence, and the rights of the parties on a final hearing will be determined by the evidence, considered in connection with the deed from Fraley to Casto.

Wherefore the judgment is reversed, with directions to overrule the demurrer, and for proceedings not inconsistent with this opinion.

Sampson, J., dissents.

Petition for rehearing denied September 21, 1920.

I. General rule, 156. II. Application of rule: a. Clay, 158.

b. Diamonds, 159. c. Freestone, 159.

d. Granite, 160.

e. Gypsum, 161.

f. Limestone, 161.

1. General rule.

It is the general rule that a conveyance or exception of "minerals" in a deed, lease, or license includes all mineral substances which can be taken from the land, and to restrict the meaning of the term there must be qualifying words or language evincing that the parties contemplated something less general than all substances legally cognizable as minerals.

United States.-Phelps v. Church of Our Lady (1902) 53 C. C. A. 407, 115 Fed. 882, 22 Mor. Min. Rep. 233 (marble); Lovelace v. Southwestern Petroleum Co. (1920) C. C. A. 267 Fed. 513, affirming (1919) 267 Fed. 504 (oil and gas).

Alabama.-McCombs v. Stephenson (1907) 154 Ala. 109, 44 So. 867 (shale). Kentucky.-Kentucky Diamond Min. & Developing Co. v. Kentucky Transvaal Diamond Co. (1910) 141 Ky. 97, 132 S. W. 397, Ann. Cas. 1912C, 417 (diamonds); Scott v. Laws (1919) 185 Ky. 440, 13 A.L.R. 369, 215 S. W. 81 (oil and gas). See also McKinney v. Central Kentucky Natural Gas Co. (1909) 134 Ky. 239, 120 S. W. 314, 20

II. continued.

g. Marble, 162.

h. Oil and gas, 162.

i. Paint stone, 166.

j. Sand, 166.

k. Shale, 167.

III. Rule in Pennsylvania, 167.

Ann. Cas. 934 (oil and gas). And see the reported case (HUDSON v. MCGUIRE, ante, 148) (oil and gas).

Louisiana.-See Calhoun v. Ardis (1918) 144 La. 311, 80 So. 548 (oil and gas).

V.

Michigan. Weaver Richards (1909) 156 Mich. 320, 120 N. W. 818 (oil and gas). Compare Deer Lake Co. v. Michigan Land & Iron Co. (1891) 89 Mich. 180, 50 N. W. 807 (marble).

New Jersey.-Hartwell v. Camman (1854) 10 N. J. Eq. 128, 64 Am. Dec. 448, 3 Mor. Min. Rep. 229 (paint stone).

New York. White v. Miller (1910) 200 N. Y. 29, 140 Am. St. Rep. 618, 92 N. E. 1065 (gypsum and limestone); French v. Lansing (1911) 73 Misc. 80, 132 N. Y. Supp. 523 (gypsum). See also Armstrong v. Lake Champlain Granite Co. (1895) 147 N. Y. 495, 49 Am. St. Rep. 683, 42 N. E. 186, 18 Mor. Min. Rep. 279 (granite); Brady v. Smith (1905) 181 N. Y. 178, 106 Am. St. Rep. 531, 73 N. E. 963, 2 Ann. Cas. 636, reversing (1903) 88 App. Div. 427, 84 N. Y. Supp. 1119 (limestone).

Ohio.-See Detlor v. Holland (1898) 57 Ohio St. 492, 40 L.R.A. 266, 49 N. E. 690 (oil and gas).

Oklahoma. - Barker v. CampbellRatcliff Land Co. (1917) 64 Okla. 249, L.R.A.1918A, 487, 167 Pac. 468 (oil and gas).

V.

Tennessee. - Murray Allred (1897) 100 Tenn. 100, 39 L.R.A. 249, 66 Am. St. Rep. 740, 43 S. E. 355, 19 Mor. Min. Rep. 169 (oil and gas). Texas.-Luse v. Boatman (1919) Tex. Civ. App., 217 S. W. 1096 (oil and gas); Luse v. Parmer (1920) Tex. Civ. App. 221 S. W. 1031 (same). See also Gladys City Oil, Gas & Mfg. Co. v. Right of Way Oil Co. (1911) Tex. Civ. App. 137 S. W. 171 (same).

West Virginia.-Sult v. A. Hochstetter Oil Co. (1908) 63 W. Va. 317, 61 S. E. 307 (oil and gas); ROCK HOUSE FORK LAND Co. v. RALEIGH BRICK & TILE Co. ante, 144. See also Horse Creek Land & Min. Co. v. Midkiff (1918) 81 W. Va. 616, 95 S. E. 26 (oil and gas).

England.-Bell v. Wilson (1866) L. R. 1 Ch. 303, 12 Jur. N. S. 263, 35 L. J. Ch. N. S. 337, 14 L. T. N. S. 115, 14 Week. Rep. 493, 17 Eng. Rul. Cas. 422, 10 Mor. Min. Rep. 415 (freestone); Hext v. Gill (1872) L. R. 7 Ch. 699, 41 L. J. Ch. N. S. 761, 27 L. T. N. S. 291, 20 Week. Rep. 957, 17 Eng. Rul. Cas. 429, 17 Mor. Min. Rep. 1 (china clay).

Ireland. Staples v. Young [1908] 1 Ir. R. 135 (sand).

"The adoption of arbitrary definitions in reference to mineral substances buried in the earth is not permissible. The word 'mineral' standing by itself might, under a broad, general, popular definition embrace the soil and all that is to be found beneath its surface; under a strict definition it might be limited to metallic substances; and under a definition coupling it with mines it covers all substances taken out of the bowels of the earth by the processes of mining." Brady v. Smith (1905) 181 N. Y. 178, 106 Am. St. Rep. 531, 73 N. E. 963, 2 Ann. Cas. 636, reversing (1903) 88 App. Div. 427, 84 N. Y. Supp. 1119.

"Originally it seems to have been

held in England that the term 'mineral' would include anything that was produced from mines or by the ordinary process of mining; that is, by excavation by means of shafts or tunnels. This definition was adhered to by the English courts for many years; but when the question of whether or not a bed of clay operated by open workings, and not by the ordinary processes of mining, was a mineral, it was held to be such. It was held that the term 'mineral' means primarily all substances, other than the agricultural surface of the ground, which may be got for manufacturing or mercantile purposes, whether from mines, as the word would seem to signify, or such as stone or clay, which are got by open workings." ROCK HOUSE FORK LAND Co. v. RALEIGH BRICK & TILE Co. (reported herewith) ante, 144.

While "the right to take and use all minerals, if it includes subsurface minerals, would include not only the right to take and use petroleum oil, but everything else coming under the definition of 'minerals upon or under the surface,' that is, 'any constituent of the earth's crust.'' (Gladys City Oil, Gas & Mfg. Co. v. Right of Way Oil Co. (1911) Tex. Civ. App. 137 S. W. 171), very clearly it does not include everything embraced in the mineral kingdom as as distinguished from what belongs to the animal and vegetable kingdoms, since if it did it would include the soil itself (Hartwell v. Camman (1854) 10 N. J. Eq. 128, 64 Am. Dec. 448, 3 Mor. Min. Rep. 229).

The word "mineral" is not a definite term, and is susceptible of limitations or extensions, according to the intention with which it is used. Glasgow v. Farie (1888) L. R. 13 A. C. 657, 58 L. J. P. C. N. S. 33, 60 L. T. N. S. 274, 37 Week. Rep. 627, 17 Eng. Rul. Cas. 485.

It is thus apparent that each case must be decided on the language of the grant or reservation, the surrounding circumstances, and the intention of the grantor, if it can be ascertained. McKinney v. Central Kentucky Natural Gas Co. (1909) 134 Ky. 239, 120 S.

W. 314, 20 Ann. Cas. 934; Brady v. Smith (1905) 181 N. Y. 178, 106 Am. St. Rep. 531, 73 N. E. 963, 2 Ann. Cas. 636, reversing (1903) 88 App. Div. 427, 84 N. Y. Supp. 1119; Sult v. A. Hochstetter Oil Co. (1908) 63 W. Va. 317, 61 S. E. 307; ROCK HOUSE FORK LAND CO. v. RALEIGH BRICK & TILE Co. (reported herewith) ante, 144.

The West Virginia court, in Horse Creek Land & Min. Co. v. Midkiff (1918) 81 W. Va. 616, 95 S. E. 26, stated the rule as follows: "The term 'mineral,' when employed in conveyancing in this state, is understood to include every inorganic substance which can be extracted from the earth for profit, whether it be solid, as stone, fire clay, the various metals and coal, or liquid, as, for example, salt and other mineral waters and petroleum oil, or gaseous, unless there are words qualifying or limiting its meaning, or unless from the deed, read and construed as a whole, it appears that the intention was to give the word a more limited application."

The lord justice in the English case of Hext v. Gill (1892) L. R. 7 Ch. 699, 17 Eng. Rul. Cas. 429, 17 Mor. Min. Rep. 1, said: "The result of the authorities appears to be this-that a reservation of 'minerals' includes every substance which can be got from underneath the surface of the earth for the purpose of profit, unless there is something in the context or in the nature of the transaction to induce the court to give it a more limited meaning."

The word "mines" placed before "minerals" has been held not to restrict the meaning of "minerals." Hext v. Gill (Eng.) supra. Compare, however, the cases set out infra, subd. II. e; II. f; and II. g.

It has been held that no distinction can be made between subterranean mining and open quarrying. ROCK HOUSE FORK LAND Co. v. RALEIGH BRICK & TILE Co. (reported herewith) ante, 144, wherein it was said: "It is well known that much gold was procured by the process of placer mining, and surely no one would contend that the term "mineral" did not include gold, whether found upon the

surface, in the bed of a stream, or as the result of shafting and tunneling for the ore. It is also well known that rich deposits of manganese and other like ores are found upon the surface of the earth, and are sometimes secured without either quarrying or mining, and it could not be contended that such ores when so found are not minerals, but when secured by the process of tunneling and shafting, or other similar mining processes, are minerals." The context may, however, require such a distinction. See the cases set out infra, subd. II. d; II. e; II. f.

Nor does the fact that the land contains minerals which were unknown to have existed seem to be material. Thus, in Armstrong v. Lake Champlain Granite Co. (1895) 147 N. Y. 495, 49 Am. St. Rep. 683, 45 N. E. 186, 18 Mor. Min. Rep. 279, it was said that it would be "an unwarrantable limitation of such a grant or reservation . . . to confine it to such minerals as were known or supposed to be on the premises at the time" the deed was executed. To the same effect, see White v. Miller (1910) 200 N. Y. 29, 140 Am. St. Rep. 618, 92 N. E. 1065. It has been held, however, that a conveyance of "all mines and ores of metals," does not include a deposit of marble and serpentine, which was not, at the time of the execution of the deed, known to exist in that part of the country. See Deer Lake Co. v. Michigan Land & Iron Co. (1891) 89 Mich. 180, 50 N. W. 807.

II. Application of rule.

a. Clay.

In Hext v. Gill (1872) L. R. 7 Ch. 699, 17 Eng. Rul. Cas. 429, 17 Mor. Min. Rep. 1, a reservation of "mines and minerals" was held to include china clay. The court said: "The circumstances, as far as they are material to be stated, are these: The seller was the lord of the manor. What he sold was the freehold of a copyhold tenement. Now the lord of a manor is, beyond all question, entitled to all the minerals, in the most general sense of the word, under a copyhold tenement. There is nothing

to be got out of the soil and sold for the profit which the copyhold tenant, in the absence of some special custom, is entitled to get without the permission of the lord; the property of it is in the lord, although it is true that, in the absence of special custom, the lord cannot get it without the license of the tenant. The position of the parties, therefore, furnishes no reason for restricting the meaning of the word 'minerals;' and there being no special words before 'mines and minerals' which might furnish an argument for restricting them to things ejusdem generis, I am of opinion that the surface, and all profit that can be got from cultivating the surface, or building on it, or using the surface, is intended to be conveyed, but that the right to everything under the surface, and to all profit that can be got from digging anything out from under it, is intended to be reserved. I am therefore of opinion that China clay is included in the reservation."

The deed construed in ROCK HOUSE FORK LAND Co. v. RALEIGH BRICK & TILE Co. (reported herewith) ante, 144, granted all the "coal and other minerals of every kind and description, except oil and gas," together with the right to "mine, excavate, and remove all the coal, make and maintain all necessary railroads, excavations, ways, shafts, drains, drain ways, and openings necessary and convenient for the mining and removal of said coal and other minerals." In the absence of any extrinsic evidence to show the intention of the parties, it was held that a seam of clay, valuable for the manufacture of brick, was not within the term "other minerals" as used in the grant.

b. Diamonds.

The court in Kentucky Diamond Min. & Developing Co. v. Kentucky Transvaal Diamond Co. (1910) 141 Ky. 97, 132 S. W. 397, Ann. Cas. 1912C, 417, holding that a diamond is a mineral within the meaning of that term as used in a conveyance, said: "The deed here simply conveys 'all the mineral.' These general words aptly include every kind of mineral found on

the land. Would it be doubted that if gold had been discovered that it would have passed by this deed, although Ratcliff at the time thought he would find silver? Or if he had failed to find silver, and had found lead, would it be doubted that this would pass by the deed? It may be true that when the deed was made the parties did not know what minerals were under the land, but the facts that they did not have diamonds in mind in no manner affects the conveyance, when by it they conveyed all the mineral. When the language of the deed is broad enough to cover everything that may be found on the land, it is not material to the effect of the deed that the parties in fact contemplated at the time that a particular thing might be found on the land. They well knew it was a matter of doubt what would be found. To make the tests, shafts had to be sunk, and the different strata had to be examined. What would be found they could only guess, and when, under these circumstances, the parties conveyed all the mineral, the grantee is entitled to the precious stones found no less than he would be if he had found platinum or radium, which is perhaps more precious than diamonds. The deed includes all the mineral except coal for the use of the farm. A deed is to be construed against the grantor, rather than against the grantee, because the grantor selects his own words; and where he conveys all the mineral, the court must enforce the contract according to the natural meaning of the language used."

c. Freestone.

In Bell v. Wilson (1866) L. R. 1 Ch. 303, 17 Eng. Rul. Cas. 422, 10 Mor. Min. Rep. 415, the court held that a bed of freestone was within an exception of "all mines and seams of coal, and other mines, metals, or minerals, as well opened as not opened, within and under the said closes or parcels of ground mentioned and intended to be hereby granted and released, with full liberty to search for, dig, bore, sink, win, work, take, lead, and carry away the same." In that case it was

said: "The words of this exception are most general and comprehensive; and if it can be held that the freestone is not included in these words, it can only be, as it seems to me, upon one or other of these grounds, either that the freestone is not a mineral, or that, being a mineral, the nature or context of the deed shows that it was not intended to be included. But the cases are, I think, decisive upon this point, that freestone is a mineral; and I can find nothing in the nature or context of this deed to show that it was not intended to be included in the exception. The vice chancellor appears to have considered that the intention was to reserve only that which was ordinarily gotten by mines in the county of Northumberland at the time of the execution of the deed. But the Ideed does not refer to what is ordinarily gotten, and I think this construction goes too far in cutting down the effect of the general words, which, as I take it, in the absence of manifest intention or context to the contrary, ought to have their full effect. This construction would probably operate to prevent the general words extending to many other subjects than freestone. If, indeed, effect could not be given to the exception without destroying the previous grant, this might be considered to show an intention that the exception should not include the freestone; but I do not think this would be the case. It is argued for the plaintiff that it appears from the deed that the parties must have known the position of the different strata in these closes of land. But this argument cuts both ways; for it may well be that the general words were inserted in consequence of that knowledge."

d. Granite.

In Armstrong v. Lake Champlain Granite Co. (1895) 147 N. Y. 495, 49 Am. St. Rep. 683, 42 N. E. 186, 18 Mor. Min. Rep. 279, it appeared that a bed of graphite, overlaid by soil from 4 to 6 feet deep on land which was thickly wooded, could be removed by open quarrying. The court, intimating that in the absence of qualifying words the term "minerals" might embrace gran

ite, held that only minerals obtained by underground mining were given by a deed conveying "all the mineral and ores (on the same premises), with the right to mine and remove the same; also the right to sink shafts and sufficient surface to erect suitable buildings for machinery and other buildings necessary and usual in mining and raising ores; also the right of ingress and egress for mining purposes, and to make explorations for minerals and ores, saving reservations to the state of New York." It was said: "Upon the authorities we think we should not be justified in holding that granite was not embraced in a reservation or grant of 'minerals,' in the absence of qualification. It is no doubt true that this word, in its more common application in a grant of 'minerals', would be deemed to refer to metallic substances. This perhaps grows out of the fact that mining is, to a great extent, prosecuted for the purpose of obtaining gold, silver, iron, and other metals, and grants of 'minerals' or reservations thereof in conveyances of public lands are most frequently made with reference to mineral-bearing ores or deposits. But it would be an unwarrantable limitation of such a grant or reservation to exclude from its operation beds of coal or other nonmetallic mineral deposits of commercial value, or to confine it to such minerals as were known or supposed to be on the premises at the time. The grant or reservation of minerals in a deed contemplates substances to be severed and taken away from the premises, and it is difficult to suppose that the parties to such a deed intended to exclude from the grant any description of valuable mineral which would come within the legal meaning of the word, which might thereafter be discovered. We are of opinion, therefore, that the words 'minerals and ores' in the grant of 1871, standing alone, would include the granite upon the premises.

But these words do not stand alone, but are connected with a context which clearly indicates, in our judgment, that the parties had in view only such minerals as are to be got by